PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AFZAL HUSSAIN,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney
General,
Respondent.

No. 05-2350

On Petition for Review of an Order

of the Board of Immigration Appeals.
(A76-595-607)
Argued: September 19, 2006
Decided: February 16, 2007
Before NIEMEYER, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
Henry F. FLOYD, United States District Judge
for the District of South Carolina, sitting by designation.

Petition denied by published opinion. Judge Floyd wrote the majority

opinion, in which Judge Niemeyer concurred. Senior Judge Hamilton
wrote a dissenting opinion.

COUNSEL
ARGUED: Jennifer Sheethel Varughese, Herndon, Virginia, for Petitioner. Ernesto Horacio Molina, II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON

HUSSAIN v. GONZALES

BRIEF: Joe W. Nesari, LAW OFFICES OF J. W. NESARI, L.L.C.,

Herndon, Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney
General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director,
Office of Immigration Litigation, Song E. Park, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.

OPINION
FLOYD, District Judge:
Afzal Hussain, a native and citizen of Pakistan, petitions this Court
for review of an order of the Board of Immigration Appeals (Board)
denying his appeal from the immigration judges order which denied
his motion to reopen and disposed of his motion to remand. Hussains
only challenge is to the denial of his motion to remand. For the reasons set forth below, we deny the petition for review.
I.
On December 6, 2000, a notice to appear was issued to Hussain,
alleging that he entered the United States at an unknown location on
or about April 1992. (J.A. at 5.) The notice further averred that Hussain was not admitted or paroled after inspection, nor did he have any
valid reentry documents. Id.
On October 3, 2002, the immigration judge denied Hussains
request for relief from removal in absentia. (J.A. at 23.) On January
26, 2005, more than two years after the immigration judges order,
Hussain filed a motion to reopen with the immigration judge. (J.A. at
31-58.) Hussain claimed that 1) the in absentia removal order should
be rescinded because his failure to appear at the hearing was due to
exceptional circumstances; 2) the denial of relief under the Violence
Against Women Act, in which he claimed that he was abused by his
first wife, was in error; and 3) he was now eligible for adjustment of
status to that of a lawful permanent resident on the basis of a labor
certification filed on his behalf by his employer on April 24, 2001.
(J.A. at 31-58.)

HUSSAIN v. GONZALES

The immigration judge denied the motion to reopen for the reasons
stated in the Department of Homeland Securitys (DHS) response.
(J.A. at 178.) The DHS had argued that Hussains motion was
untimely and that he did not establish exceptional circumstances.
(J.A. at 150-51.)
Hussain appealed the immigration judges decision to the Board.
(J.A. at 174-76.) While the appeal was pending, Hussain filed a
motion to remand his case to the immigration judge. (J.A. at 186.)
According to Hussain, his new wife had filed an Immigrant Petition
on his behalf. (J.A. at 187.) Hussain argued that his circumstances had
materially changed and that he was entitled to a rehearing before the
immigration judge. Id. Hussain attached several documents to his
motion to remand, claiming that he was eligible for immediate and
comprehensive relief. (J.A. at 186-238.) The Government neglected
to file a response to the motion to remand.
The Board found that Hussains motion to reopen the immigration
judges order of removal entered in absentia was untimely. (J.A. at
259-60.) The Board further noted that Hussain "is also seeking to
reopen proceedings to apply for adjustment of status. An alien is not
required to rescind his or her deportation order under [the applicable]
Act if he or she is pursuing an application for new relief, and provided
there is no evidence that the respondent received the required warnings" for failing to appear. Id. (citing Matter of M-S, 22 I. & N. Dec.
349 (BIA 1998)). The Board found that motion to be untimely, as
well. Id. at 260. This petition followed.
II.
Hussain limits his petition for review to challenging the disposition
of the motion to remand. We review the denial of a motion to remand
for abuse of discretion. Obioha v. Gonzales, 431 F.3d 400, 408 (4th
Cir. 2005). The Board abuses its discretion when it "fails to offer a
reasoned explanation for its decision, distorts or disregards important
aspects of the aliens claim." Malhi v. INS, 336 F.3d 989, 993 (9th
Cir. 2003) (internal quotation marks and citation omitted).
A.
Hussain argues that the Board erred by failing to mention or
address his motion to remand in the order denying relief. The Govern-

HUSSAIN v. GONZALES

ment admits that the Board failed to refer specifically to the motion
to remand. The Government contends, however, that the Board referenced the motion to remand when it discussed Hussains motion to
reopen to apply for adjustment of status.
Because Hussains motion was filed while the appeal was pending,
it is properly classified as a motion to remand. See 8 C.F.R.
1003.2(c)(4)(2005). Thus, Hussain is correct in his contention that
the Board failed to dispose specifically of the motion to remand.
The record supports the finding that the Boards reference to the
motion to reopen was a reference to the motion Hussain filed before
the immigration judge. As noted above, in that motion, Hussain
sought reopening as a result of exceptional circumstances causing him
to be absent from his hearing, an adjustment of status because of a
labor certification filed by his attorney and relief under the Violence
Against Women Act. (J.A. at 247-55.)
The Boards order initially referenced Hussains argument that
exceptional circumstances were present when he missed his immigration hearing. (J.A. at 259.) As observed above, however, the Board
found the motion for relief as to that request to be untimely. Id. It continued by stating that Hussain "is also seeking to reopen proceedings
to apply for adjustment of status."1 Id. The Board also noted that an
alien is not obligated under some circumstances to have a deportation
order rescinded if the alien is pursuing an application for new relief.
(J.A. at 260 (citing Matter of M-S, 22 I. & N. Dec. 349).)
In Matter of M-S, the petitioner sought to have the immigration
judge rescind the order of removal so as to apply for adjustment of
status. Id. The Board held that in some circumstances the order does
not have to be rescinded. Id. at 356.
1

The Government claims that the Boards use of the word "also"
implies it was moving from the appeal to the motion to remand. It is
equally possible, however, that the use of the term "also" meant that the
Board was moving from considering reopening the in absentia order to
reopening to consider the labor certification.

HUSSAIN v. GONZALES

In the instant case, after noting that an order does not have to be
rescinded in certain cases, the Board continued by finding that,
despite the fact that rescission is sometimes unnecessary, Hussains
motion to reopen to seek new relief was untimely.2 The Boards discussion of whether rescission is essential relates to Hussains motion
to reopen, in which he did seek rescission, rather than the motion to
remand, in which he did not specifically seek rescission. Therefore,
based on the case citation in the order, the fact that the Board referred
to the motion as one to reopen, instead of referring to a motion for
remand, the discussion of rescission, and the fact that the motion to
reopen filed before the immigration judge sought an adjustment of
status, we are convinced that the Board was not referring to the
motion to remand when it disposed of the "motion to reopen."
In addition, the Government did not oppose Hussains motion to
remand. Pursuant to 8 C.F.R. 1003.2(g)(3), if the Government does
not file a response to a motion, it is deemed unopposed. An unopposed motion to remand for adjustment of status may be remanded.
In re Erales, A75-512-988, 2005 WL 649163 (BIA Jan 11, 2005)
(unpublished); In re Marquez-Ledezma, No. A78-153-433, 2004 WL
2418722 (BIA Oct. 8, 2004) (unpublished). The Boards failure to
make reference to the Governments lack of a response lends support
to Hussains claim that the Board neglected to consider the motion.
Moreover, the finding that the motion was untimely apparently
refers to Hussains motion to reopen filed before the immigration
judge. That motion was filed more than two years after the immigration judges decision. A motion to reopen must be filed no later than
ninety days after the date of the administrative decision at issue. 8
C.F.R. 1003.2(c)(2). The parties have not submitted, and we have
not found, either a comparable regulation for motions to remand or
an instance in which a motion to remand, filed while an appeal was
2

The Government contends that the reference to "new relief" implies

that the Board was referring to the adjustment of status based upon his
marriage. However, Hussain also sought "new relief" before the immigration judge when he sought an adjustment of status as a result of a
labor certification. There is nothing in the record to support the Governments claim as to what was intended by the Boards reference to new
relief.

HUSSAIN v. GONZALES

pending, was denied because it was untimely. Accordingly, we find

that the Boards order neglected to properly dispose of the motion to
remand.
B.
The Government contends that if the Board failed to consider Hussains motion to remand, this Court should, nevertheless, deny the
petition for review. According to the Government, Hussain is statutorily prohibited from receiving adjustment of status because he
entered the country illegally. We agree.
The Attorney General, in his discretion, may adjust the status of an
alien to that of a lawful permanent resident if the alien "was inspected
and admitted or paroled into the United States . . ." 8 U.S.C.A.
1255(a) (2000); Jean v. Gonzales, 435 F.3d 475, 477 (4th Cir.
2006). Generally, an alien present in the United States without being
admitted or paroled is inadmissible. 8 U.S.C.A. 1182(a)(6) (2000).
The record supports the finding that Hussain was not inspected or
paroled into the United States. (J.A. at 5.) In fact, in his documentation to adjust his status, Hussain admitted that he entered the United
States without inspection. (J.A. at 122, 125.)
A motion to reopen proceedings "for the purpose of submitting an
application for relief must be accompanied by the appropriate application for relief and all supporting documentation." 8 C.F.R.
1003.2(c)(1). To establish a prima facie case for adjustment of status, Hussain must demonstrate the following: (1) he has applied for
an adjustment of status; (2) he is eligible to receive an immigrant visa
and is admissible to the United States; and (3) an immigrant visa was
immediately available to him at the time his application was filed. 8
U.S.C. 1255(a) (2000); Onyeme v. INS, 146 F.3d 227, 231 (4th Cir.
1998). Hussain has failed to make a prima facie case in his motion
to remand because he failed to establish that he was admissible. See
8 U.S.C. 1182(a)(6). Accordingly, we hold that Hussain is ineligible
for the relief that he seeks.
In matters such as this, the Court "is not generally empowered to
conduct a de novo inquiry into the matter being reviewed and to reach

HUSSAIN v. GONZALES

its own conclusions based on such an inquiry. Rather, the proper

course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation." INS v. Ventura, 537 U.S. 12,
16-18 (2002) (holding that the federal appellate court should have
remanded the case to the Board to make a factual determination as to
whether political conditions had improved in Guatemala to the extent
that political persecution was no longer likely) (internal citations and
quotation marks omitted) (emphasis added). Moreover, in Gonzales v.
Thomas, ___U.S. __, 126 S. Ct. 1613 (2006), the Supreme Court reiterated the holding in Ventura, stating that no special circumstances in
Thomas permitted the appellate court to consider a factual issue in the
first instance.
The matter requires determining the facts and deciding
whether the facts as found fall within a statutory term. And
as we said in Ventura:
The agency can bring its expertise to bear upon the matter;
it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion
and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.
We can find no special circumstance here that might have
justified the Ninth Circuits determination of the matter in
the first instance. Thus, as in Ventura, the Court of Appeals
should have applied the ordinary remand rule.
Id. at 1615 (internal citations and quotation marks omitted) (emphasis
added).
Thus, both Ventura and Thomas concerned, in part, the appellate
courts authority to review in the first instance factual issues not considered by the Board. The Supreme Court did not speak to whether
the appellate courts have authority to review in the first instance statutory issues, although it did state the appellate courts authority was
limited to rare circumstances.3
3

This Court has also noted that a remand is necessary for the Board to
make an initial determination on a factual issue if it is necessary to dispose of the case. Li v. Gonzales, 405 F.3d 171, 178 (4th Cir. 2005).

HUSSAIN v. GONZALES

Moreover, as aptly observed by the Fifth Circuit, the language in

Ventura is precatory, not mandatory, and, thus, remand is not always
necessary. Zhao v. Gonzales, 404 F.3d 295, 311 (5th Cir. 2005)
("[A]lthough the language in Ventura is strong, it remains precatory.
The Court could have worded its holding categorically, and its failure
to do so must be a conscious decision.")
Simply stated, Hussain is ineligible for the relief he seeks because
he is unable to establish a prima facie case for the adjustment of his
status. This is a legal, not a factual, conclusion.4 As such, to remand
this matter to the Board for further consideration would serve no useful purpose. Zhong v. U.S. Dept of Justice, 461 F.3d 101, 113 (2d
Cir. 2006) (stating that an agency error does not warrant remand when
it is clear from the record "that the same decision is inevitable on
remand, or, in short, whenever the reviewing panel is confident that
the agency would reach the same result upon a reconsideration
cleansed of errors") (citation omitted).
Because the result of a remand to the Board is a foregone conclusion such that remand would amount to nothing more than a mere formality, we find that the Ventura "rare circumstances" exception applies.5
That is, like the Zhao court, "[w]e cautiously conclude that this case
exhibits the narrow set of circumstances that requires no remand."
Zhao, 404 F.3d at 311 (footnote omitted).6
4

We review questions of law de novo. Dekoladenu v. Gonzales, 459

F.3d 500, 503 (4th Cir. 2006).
5
The dissent observes that we neglected to cite any case in which a
federal court of appeals has refused to remand a case to the Board under
similar circumstances subsequent to Ventura and Thomas, but then fails
to reference any case similar to the one at bar in which an appellate court
in fact remanded the case. We interpret the absence of similar cases as
further support for our opinion that this is the sort of case that triggers
the "rare circumstances" exception found in Ventura.
6
"A reviewing court can no doubt find some deficiency in the process
afforded, in the findings of fact, or the legal analysis in nearly any
agency adjudication. The courts . . . distinguish trivial or harmless error
from error requiring reversal or remand for further consideration." John
W. Guendelsberger, "Judicial Deference to Agency Decisions in
Removal Proceedings in Light of INS v. Ventura", 18 Geo. Immigr. L.J.
605, 638 (2004).

HUSSAIN v. GONZALES

Finally, there is a "strong public interest in bringing litigation to a

close as promptly as is consistent with" a fair opportunity to present
claims. INS v. Abudu, 485 U.S. 94, 105, 107 (1988). This is particularly true in cases such as this, "where, as a general matter, every
delay works to the advantage of the deportable alien who wishes
merely to remain in the United States." INS v. Doherty, 502 U.S. 314,
323 (1992).
The significant likelihood is that any further decision by the Board
on this issue that is unfavorable to Hussain will be brought to this
Court, again. The determination that we have made today is inevitable
on remand. Hence, there is no legal reason for further delay.
III.
Accordingly, we deny Hussains petition for review.
PETITION DENIED
HAMILTON, Senior Circuit Judge, dissenting:
I have two main points of disagreement with the majority opinion.
First, I disagree with the majority opinions failure to remand this
case to the Board for issuance of a clarifying order. In my view, the
Boards November 14, 2005 decision (the Boards Final Decision) is
sufficiently ambiguous regarding whether the Board ruled upon Hussains July 19, 2005 motion to remand (Hussains Motion to Remand)
that granting Hussains petition for review and remanding the case to
the Board with instructions to issue a clarifying order is required and
mandated. Second, assuming arguendo, that the Board did not rule on
Hussains Motion to Remand as the majority opinion concludes, I disagree with the majority opinions decision to address such motion on
the merits in the first instance. In so addressing, the majority opinion
oversteps our review authority. Accordingly, I respectfully dissent.
I.
Before addressing in detail my points of disagreement with the
majority opinion, the Board deserves to be rebuked for issuing a final

10

HUSSAIN v. GONZALES

decision in which we, as the reviewing court, cannot readily discern

whether the Board even ruled upon a particular motion pending
before it. Immigration law, in and of itself, is complicated and confusing enough that we should not be thrown into debate at the federal
appellate level regarding what action the Board actually took.
Turning to my first main point of disagreement with the majority
opinion, a careful reading of the record and the Boards Final Decision shows that the majority opinions conclusion that the Board
failed to dispose of Hussains Motion to Remand is just a reasoned
guess or mere speculation. The truth is that we really do not know
whether the Board intended to dispose of Hussains Motion to
Remand in its Final Decision. Indeed, the government candidly conceded at oral argument that the Boards Final Decision is ambiguous
on the point.
I disagree with the majority opinions choice to discern from the
indiscernible whether the Board ruled upon Hussains Motion to
Remand. The prudent course, in this wholly ambiguous situation with
which we find ourselves confronted, is to remand the case to the
Board with instructions for the Board to issue a clarifying order. Specifically, I would instruct the Board to clarify whether it had ruled
upon Hussains Motion to Remand in its Final Decision in denying
the second-mentioned motion to reopen. If it had so ruled, I would
instruct the Board to clarify its reason or reasons for so ruling. If it
had not so ruled, I would instruct the Board to rule on the motion and
to express its reason or reasons for so ruling.
II.
My second main point of disagreement with the majority opinion
concerns the majority opinions decision to address the merits of Hussains Motion to Remand. After the majority opinion concludes that
the Board did not rule on Hussains Motion to Remand, the majority
opinion takes the extraordinary step of addressing such motion on the
merits in the first instance. According to the majority opinion, remand
to the Board for a ruling in the first instance would serve no useful
purpose because, based upon the record, Hussain is unable to establish a prima facie case for adjustment of status. Notably, the majority
opinion takes pains to stress that its conclusion that Hussain is unable

HUSSAIN v. GONZALES

11

to establish a prima facie case for adjustment of status "is a legal, not
a factual, conclusion." Ante at 8.
Significantly, the majority opinions decision to address the merits
of Hussains Motion to Remand in the first instance violates the ordinary remand rule as recently reiterated and applied in the Supreme
Courts immigration decisions in INS v. Ventura, 537 U.S. 12 (2002)
(per curiam) and Gonzales v. Thomas, 126 S. Ct. 1613 (2006) (per
curiam).
In Ventura, the Ninth Circuit had addressed and rejected an argument by the government that political conditions in Guatemala had
improved to the point that political persecution was no longer likely
in Guatemala. Ventura, 537 U.S. at 13. The Board had not addressed
the issue. Id. The Supreme Court reversed the Ninth Circuit insofar
as it had denied remand to the Board. In so reversing, the Supreme
Court applied the ordinary remand rule, which rule provides that, in
reviewing the decision of an administrative agency, "[a] court of
appeals is not generally empowered to conduct a de novo inquiry into
the matter being reviewed and to reach its own conclusions based on
such an inquiry. Rather, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or
explanation." Id. at 16 (internal citations and quotation marks omitted). As rationale for the ordinary remand rule, the Court explained
that the administrative "agency can bring its expertise to bear upon
the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later to determine whether its decision exceeds the
leeway that the law provides." Id. at 17. The Court held that the Ninth
Circuit should have applied the ordinary remand rule, and therefore,
had erred by deciding the "changed circumstances" issue "without
giving the [Board] the opportunity to address the matter in the first
instance." Id. at 17.
In Thomas, the Supreme Court addressed whether the Ninth Circuit
had erred in considering, in the first instance, whether a given group
of persons fell within the statutory term "particular social group"
under 101(a)(42)(A) of the Immigration and Nationality Act (INA),
8 U.S.C. 1101(a)(42)(A), when the Board had not formally considered such question. Thomas, 126 S. Ct. at 1614. Applying the ordi-

12

HUSSAIN v. GONZALES

nary remand rule, the Court held that the Ninth Circuit had again
usurped the relevant administrative agencys role by making basic
asylum eligibility decisions. Thomas, 126 S. Ct. at 1615. The Board
had yet to consider whether "Boss Ronnies family presents the kind
of kinship ties that constitute a particular social group," which
"matter," the Court stated, "requires determining the facts and deciding whether the facts as found fall within a statutory term." Id. The
Supreme Court, therefore, vacated and remanded, holding that, absent
"special circumstances" not present in that case, the relevant administrative agency must first opine on issues about which it has expertise
prior to appellate review. Id.
In addressing Hussains Motion to Remand on the merits in the
first instance, the majority opinion attempts to rely upon a distinction
between factual and legal issues. The majority opinion states that in
discussing the ordinary remand rule in Ventura and Thomas, "[t]he
Supreme Court did not speak to whether the [federal] appellate courts
have authority to review in the first instance statutory issues . . . ."
Ante at 7. Therefore, the majority opinion reasons, Ventura and
Thomas present no bar to our court, in the first instance, denying Hussains Motion to Remand based upon a legal ruling. Ante at 7-8.
In my view, the majority opinion misreads Ventura and Thomas.
The issues remanded in Ventura and Thomas both involved factual
and legal aspects. In Ventura, the "changed circumstances" issue called not only for the Boards review of evidence in the record, but for
the Boards application of the law to the facts, Ventura, 537 U.S. at
16-17. Such application of the law to the facts brings into play the
Boards conferred interpretative expertise in the field of immigration
law, INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (holding that
Chevron deference applies to the Board based on the statutory allocation of power laid out by Congress in the INA); see also 8 C.F.R.
1003.1(d) ("[T]he Board, through precedent decisions, shall provide
clear and uniform guidance to the Service, the immigration judges,
and the general public on the proper interpretation and administration
of the Act and its implementing regulations."). Similarly, the issues
remanded in Thomas called for the Boards review of the evidence in
the record as well as the Boards exercise of its conferred interpretive
expertise in the field of immigration law. Thomas, 126 S. Ct. at 1615
("The agency has not yet considered whether Boss Ronnies family

HUSSAIN v. GONZALES

13

presents the kind of kinship ties that constitute a particular social

group. The matter requires determining the facts and deciding
whether the facts as found fall within a statutory term.").
Here, by addressing the merits of Hussains Motion to Remand in
the first instance, the majority opinion, just as the Ninth Circuit erroneously did in Ventura and Thomas, usurps the authority of the Board
to rule on an issue of immigration law in the first instance, i.e.,
whether Hussain is eligible under the INA for the relief he seeks.
Moreover, as a plain reading of the majority opinion makes clear,
Hussains Motion to Remand requires review of the evidentiary
record in this case and resolution of factual issues, such as whether
Hussain was admitted into the United States. Ante at 8. There is nothing in the circumstances of the instant case which suggest that this
case presents "rare circumstances" justifying exception from the ordinary remand rule. Ventura, 537 U.S. at 16. For example, Hussain has
not expressly conceded on appeal before us that he is ineligible for
the relief he seeks in his Motion to Remand.
Perhaps the most troubling aspect of the majority opinion is that
one cannot tell from reading it upon what legal authority the majority
opinion based its refusal to remand this case to the Board. In fact, the
majority opinion does not cite a single case in which a federal court
of appeals has refused to remand a case to the Board under similar
circumstances post-Ventura and Thomas.
To summarize, the Supreme Court made quite clear in Ventura and
Thomas that a federal appellate court should remand legal and factual
issues of immigration law not previously addressed by the Board to
the Board for resolution in the first instance except in "rare circumstances . . . ." Ventura, 537 U.S. at 16. The majority opinions decision not to remand this case to the Board for the Board to rule on
Hussains Motion to Remand in the first instance creates an exception
to the ordinary remand rule that swallows the rule.
III.
In conclusion, I disagree with the majority opinions disposition in
this case. Instead of denying Hussains petition for review as the
majority opinion does, I would grant the petition for review and

14

HUSSAIN v. GONZALES

remand the case to the Board for issuance of a clarifying order as

detailed above. Accordingly, I dissent.